Friday, July 11, 2008

News---SCV's Image Problem and Confederate Battle Flag In Court

MARTINSBURG -- An Eastern Panhandle neighborhood is divided over whether one homeowner's display of a Confederate flag is a matter of history or something worse. Richard Bushong, a member of a local Sons of Confederate Veterans group, said he had no idea the flag would upset any of his neighbors in the Villages of Washington Trails subdivision. The flag is an early design known as the "stars and bars,'' featuring a circle of seven white stars against a blue background, with two red and one white stripes. It is not the more familiar Confederate battle flag, the display of which has been a flashpoint for controversy around the country.

But neighbor Renee Brunson said the sight of the flag made her think of family ancestors who had been slaves. "I did, I broke down and cried because to me that represents racism and slavery, and we don't need to be reminded of that,'' she said. Kelly Hester, another neighbor, said the flag doesn't reflect the neighborhood's racial and ethnic diversity. "We really don't want there to be any trouble over this, we just want it taken down because it's not representative of how we feel and live here,'' she said. Bushong said he plans to take the flag down this week, although he said its display has more to do with his interest in history. That interest led him to join the Sons of Confederate Veterans, although he acknowledges the group has an image problem. "The biggest problem we have is distancing ourselves from groups like the Ku Klux Klan,'' he said. "We have absolutely no use for them or any other groups that are based on hate.'' Clagett Management, which oversees the subdivision's homeowners' association, said there is no rule prohibiting the display of flags by homeowners.

Tennessee Confederate-Flag Controversy Set For August Trial, David L. Hudson Jr. First Amendment Center, July 11, 2008.

A federal district court has refused to grant a preliminary injunction against a flag-display ban in Anderson County, Tenn., public schools in a case involving a former student.One of the most divisive symbols in public life and public schools is the Confederate flag. Its proponents extol it as a symbol of a proud heritage; opponents counter that it represents hate and racial supremacy. Public school officials across the country have found themselves embroiled in legal controversies when they punish students who wear Confederate flag clothing. The Tennessee student, Tom DeFoe, was suspended in 2006 for wearing a Confederate flag T-shirt and belt buckle while attending Anderson County High School and Anderson County Career and Technical Center.

DeFoe sued in federal court, contending that school officials violated his First Amendment rights when they punished him for his expressive clothing. DeFoe argued that his Confederate-flag clothing caused no disruption at school. School officials countered that there had been incidents of racial unrest, violence and disruptions as a result of other displays of the Confederate flag. The injunction was denied July 1. Each side points to the U.S. Supreme Court’s seminal student free-expression case, Tinker v. Des Moines Independent Community School District (1969), in which the Court prohibited the selective targeting of a black peace armband associated with an anti-war viewpoint.

In Tinker, the high court ruled that public school officials could censor student speech if they could show that the expression caused a substantial disruption of school activities or invaded the rights of others. The Court majority reasoned that the Iowa school officials failed to meet this standard with regard to the wearing of the armbands. The opinion also noted that officials allowed students to wear other symbols, such as political campaign buttons and the Iron Cross.

“Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible,” wrote Justice Abe Fortas for the Tinker majority. He added that “the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.”

So the question facing the litigants in the Anderson County case is whether the display of the Confederate flag created any substantial disruption or whether school officials could reasonably forecast that such displays would disrupt the school environment. DeFoe’s legal counsel, Knoxville-based attorney Van R. Irion, has filed several motions for a preliminary injunction, asking the court to order the school to stop banning the Confederate flag.

In its July 1 opinion in DeFoe v. Spiva, the federal district court denied DeFoe’s fourth motion for a preliminary injunction. The court rejected the argument that, because the school allowed racially inclusive symbols, the suppression of the Confederate flag constituted viewpoint discrimination. However, the court also ruled that the case could proceed on whether the school engaged in viewpoint discrimination by selectively singling out the Confederate flag while allowing other racially divisive clothing.

“In sum, a school cannot permit discussion of some racially divisive issues and not others, but there is no requirement that a school allow racially divisive speech simply because it allows racially inclusive speech,” Judge Thomas A. Varlan wrote. “Thus, defendants’ allowance of expressions of opinions promoting racial equality, tolerance, diversity and cultural equalities does not mean that they must allow racially divisive expressions.”

Varlan added that “plaintiffs can still be successful in their claim of viewpoint discrimination if they demonstrate that school officials discriminate between different disruptive racially divisive expressions.” The case now proceeds to trial on Aug. 11. “If we don’t win at trial I will absolutely be appealing this case, based upon several other bad rulings,” Irion said. “However, I fully expect to win at trial.” Irion expressed displeasure with the latest denial of preliminary-injunctive relief.

“Categorical bans on content are not allowed when the school already allows other viewpoints to be expressed via the same means,” Irion said. “So, if the school tolerates displays of flags in general, it cannot prohibit the Confederate flag in a categorical manner. It must analyze potentially disruptive flags on a case-by-case basis to determine if a particular display is likely to cause substantial disruption to school operations.”

Arthur F. Knight III, attorney for the schools, said that “the Confederate flag is a racially divisive symbol” in public schools. He noted that two days after two African-American students who had moved from an area hit by Hurricane Katrina enrolled in an Anderson County school, other students raised a Confederate flag in the gym. “Go to www.kkk.com and see how that group uses the Confederate flag,” Knight said.